法律英语-何家弘(14)

A killing of this type is treated less harshly than murder, out of consideration for the frailties of human nature. In other words, there is an understanding appreciation that the instinctive reaction of the husband (or wife) in such a situation is to kill or do other serious harm. Nevertheless, there is a feeling that such conduct should be discouraged by a criminal sanction, but one with a penalty considerably less than for 的这种反应是否存在激怒的情况时，应当将他在这种情况下的感受考虑进去。但是法庭认为他的行为要根据一般标准，即正常的“通情达理的人”的标准进行判断。

(b) Involuntary Manslaughter

Involuntary manslaughter may be described generally as an unintentional killing resulting from gross negligence, or as a result of dangerous unlawful conduct. For the crime of murder.

考虑到人类本性的缺点，这类杀人受到的处罚轻于谋杀。换句话说，人们对于丈夫或妻子在这种状况下的本能反应要么是杀人要么实施其他的伤害行为是理解的（有一种理解性的评价）。尽管如此，人们还是感到这种行为应当通过刑事惩罚受到制止，但是应当是一种比谋杀罪轻得多的惩罚。

It is of interest to note that in such paramour killing cases the conviction rate is quite low, primarily because of the willingness of juries to accept occasionally the frequently concocted explanation that the killing was done in selfdefense; in other words, the paramour attacked the spouse, who killed his "attacker" only in order to keep from being killed himself. The result of acquittal in such cases is sometimes described in the press as an acquittal by reason of "the unwritten law".

值得注意的是在这种杀害奸夫（妇）的案件中判罪率很低，这主要是因为陪审团时不时地愿意接受（被告）通常所编造的关于杀人是在自卫中实施的这种解释，换句话说，是由于奸夫（妇）袭击这位配偶，因此他（她）只是为了防止自己被杀死而杀死了这位“袭击者”。在这类案件中的无罪判决有时被媒体称为根据“无字之法”作出的无罪判决。

A few states (Texas, New Mexico, and Utah) have tried to simplify the whole matter of paramour killings by legalizing such killings where the paramour is caught in the act. But in those states the privilege does not extend to the killing of the participating spouse!

有不少的州（得克萨斯、新墨西哥和犹他州）已经试着在起立法中通过将在奸夫（妇）被捉的情况下发生的此类杀人行为合法化而使整个的奸夫（妇）被杀问题简单化。但是在这些州当中，这种特权并没有延伸到杀死参与通奸的配偶！

In applying the test of whether an intentional killing was upon great provocation and in the heat of passion, the question is put to the jury, or to the judge in nonjury cases, as to whether the accused reacted as a "reasonable man". Technically speaking, it is not the particular sensitivity or temper of the killer that is taken into consideration, but rather an effort is made to determine how a "reasonable man" might have acted under similar circumstances. An illustration of this is a famous English case where a sexually impotent man felt insulted by the remarks of a prostitute with whom he had tried in vain to have sexual intercourse, and he proceeded to kill her. He contended that his sensitivity over his condition should be taken into account in determining whether there was serious provocation for this reaction, but the court held that his conduct was to be judged by the standard of an ordinary, normal "reasonable man".

某一故意杀人行为是否在激怒或激情之下实施所适用的判断标准问题由陪审团或者在无陪审团的案件中的法官按照被告是否是一个“通情达理的人”来解决。从技术上来讲，并不考虑杀人者的具体的感受或情绪，而是要确定“一个通情达理的人”在类似情况下会作出怎样的行为。一个英国案例可以说明这一点。在该案中，一个阳痿的男人在试图与一名妓女发生性关系失败后感觉受到该妓女某些言辞的侮辱，因而杀死了她。他主张在认定他

example, a person who throws a heavy object from the upper stories of a building into an alley used with some frequency by pedestrians may be guilty of manslaughter if a killing results. Likewise, a motorist may commit manslanghter if he kills a child at a school crossing while travelling at an excessive speed.

（b）非故意的非预谋杀人

非故意的非预谋杀人一般可以被定义为由于重大疏忽或者作为危险的非法行为的结果而非故意地致人死亡。比如，一个人从一栋大楼的高层向常有行人行走的小巷投掷重物，如果导致杀人的结果，就可能构成非故意的非预谋杀人罪。同样，汽车驾驶人如果在学校区的人行横道超速行驶而撞死学生也可能构成该项犯罪。

A number of states have created a related crime known as "reckless homicide" or "negligent homicide", for application to killings by motorists who were driving in a reckless or grossly negligent manner. This special kind of homicide legislation was enacted because of the difficulty encountered in convicting motorists for the more revoltingly labeled offense of manslaughter (i.e., the slaughter of a man), which also carried, traditionally, a minimum penalty of one year in the penitentiary. It was thought advisable to categorize such conduct with the less revolting label of reckless or negligent homicide and also to permit the imposition of lesser penalties than the one prescribed for manslaughter. Stated another way, it is better to obtain a reasonable number …… 此处隐藏：3460字，全部文档内容请下载后查看。喜欢就下载吧 ……